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89-007 Schaer Associates, Res. 7729 relative to Civic Center expansion projectCitiq of Cupertino 10300 Torre Avenue Cupertino, California 95014 Telephone: (408) 252-4505 DEPARTMENT OF THE CITY CLERK March 3, 1989 Attention; Alexander B. Vollmer Schaer Associates, Inc. 201 Spear Street, Suite 1620 San Francisco, CA 94105 CONIRACIUAL PROVISIONS - AMOROSO CLAIM Dear Mr. Vollmer: P.O. [lox 580 Cupertino, California 95015 We are enclosing to you for your files one (1) copy of the Agreement by and between the City of Cupertino and Schaer Associates, Inc., which has been fully executed by City Officials, along with one (1) copy of Resolution No. 7729, which was enacted by the City Council of the City of Cupertino, at their regular meeting of Monday, February 6, 1989. Sincerely, DOR= CORNELIUS � CITY CLERK CITY OF CJPERTINO DC/so encl. cc: Department of Public Works RESOLUTION NO. 7729 WHEREAS, the City is desirous of engaging the services of Schaer Associates, Inc. (Dr. William Ma) to provide professional services in the Amoroso claim against the City relative to the civic center expansion project; and WHEREAS, a "Contractual Provisions" document has been submitted to the City for execution; and WHEREAS, the aforementioned document has been reviewed and approved by the City Attorney; NOW, U ERFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned "Contractual Provisons", and authorizes the Mayor and the City Clerk to execute said docuunent in behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 6th day of February 1989, by the following vote: Vote Members of the City Council AYES: Gatto, Johnson, Plungy NOES: None ASSENT: Koppel, Rogers A&S=: None ATTEST: APPROVED: /s/ nnroth; Cornelius /s/ John J. Plungy, Jr. City Clerk Mayor, City of Cupertino CONTRACTUAL PROVISIONS Professional Services Charges for professional services will be billed in accordance with the Fee Schedule. Rates are subject to an increase of eight percent (80) per annum on January 1st of each year. Services and Supplies Charges for services, equipment, and facilities not furnished as part of the Fee Schedule, and for any unusual items of expense not customarily incurred by SCHAER in its normal operations, are computed on the basis of cost. Such items include, but are not limited to: o Subsistence o Fares of public carriers (air fares, etc.) o Rental vehicles o Printing and photographic reproductions o Long-distance communications o Background verification o Special fees, insurance, permits, licenses, and taxes o Reference seminar materials (handouts) o Computer charges o Mileage for personal auto use at twenty-five cents (.25)/mile When outside services are required, these services are billed at cost, plus twenty percent (200) rev 1/8 City of 1 Cupertino V SCHAER Associates Inc. Billing Invoices for professional services and charges incurred shall be submitted at least monthly. Payment shall be made immediately upon presentation of the invoice, but no later than thirty (30) days from the date of invoice. If payment is made after the invoice due date, a charge equal to one and one-half percent (1-1/2o) per month (limited by state law) will be due in addition to the invoice amount. Should any invoice be held in dispute, only that portion of the invoice in dispute may be held in abeyance until resolved. In the event the client requests termination of the work prior to completion, SCHAER reserves the right to complete such analyses and records as are necessary to place its files in order and, where considered by SCHAER as necessary to protects its professional reputation, to complete a report on the work performed to date. A termination charge to cover the cost thereof in an amount not to exceed thirty percent (300) of all charges incurred up to the date of work stoppage may, at the discretion of SCHAER, be made. Other Provisions SCHAER agrees that it will not publish or make known to others results or information obtained from the work without approval in writing from the client. However, the client agrees that SCHAER shall be free to publish in the general literature any purely rev 1/8 _4 City of SCHAER 2 Cupertino Associates Inc. theoretical results developed in the course of this investigation without the written consent of the client. SCHAER agrees that all information obtained through work on the project shall be made available to the client at any time, subject to the terms and conditions of this agreement, and that SCHAER will communicate promptly and without request all information it deems pertinent to the project as it progresses. In the event the client intends to distribute outside its own organization any report issued under this project, such report shall be used in its entirety, unless any proposed summary or abridgement of the report has been first approved by SCHAER. Information proprietary to SCHAER, and identified as such, provided to the client must be appropriately protected and may not be further distributed by the client. Warranty and Liability SCHAER warrants that its services are performed, within the limits prescribed by the client, with the usual thoroughness and competence of the engineering profession. No other warranty or representation, either expressed or implied, is included or intended in its proposals, contracts or reports. The sole liability of SCHAER arising out of or in connection with this agreement shall be limited to bearing the cost of redoing any work done by SCHAER because SCHAER has failed to meet the standard of performance mentioned above, if such failure is reported to SCHAER within thirty (30) days of its discovery. The rev 1/8 --&V City of SCHAER 3 Cupertino Associates Inc. foregoing shall be the client's sole remedy under this agreement, and the client releases SCHAER from all further liability. The client agrees to indemnify and hold harmless SCHAER and its officers, directors, employees, and agents against (1) all third party claims, demands or liability for damages to persons or property arising out of or connected with SCHAER's performance hereunder, and arising from any cause of SCHAER or its officers, directors, employees, and agents; (2) any and all costs, expenses, attorney fees, and liability incurred by SCHAER in defense of such claims or demands, whether the same proceed to judgement or not. The client agrees, upon written request of SCHAER, to defend any suit or action brought against SCHAER on any such claims or demand. In the prosecution of any successful suit by SCHAER for the enforcement of this or any other provision of this agreement therein, the client agrees to pay to SCHAER any reasonable attorney fees and any costs of suit incurred by SCHAER. The client agrees to identify against injury, including death, and against damage or loss, all personnel and equipment of SCHAER and its agents while conducting work under this agreement on City of Cupertino property to the same extent as would have occured under a purchased liability policy. v Arbitration Any controversy or claim arising out of , or relating to, this agreement, the breach thereof, or the coverage of this arbitration provision shall be settled by arbitration conducted in California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the rev 1/8 4 V City of SCHAER 4 Cupertino Associates Inc. date of delivery of demand for arbitration. The arbitration of such issues, including the determination of the amount of any damages suffered by either party hereto by reason of the acts or omissions of the other, shall be to the exclusion of any court of law except for enforcement of an arbitral award. The decision of the arbitrators or a majority of them shall be final and binding on both parties and their respective successors and assignees. Each party shall pay the fees of its own attorneys, and the expenses of its witnesses and all other expenses connected with the presentation of its case. 4 The costs of the arbitration, including the cost of the record or transcripts thereof, if any, administrative fees, fees of the arbitrators, and all other fees and costs shall be borne as determined by the arbitrators. Force Majeure Neither party shall be considered in default in the performance of its obligations hereunder to the extent that the performance of such obligation is prevented or delayed by any cause, existing or future, which is beyond the reasonable control of the affected party, provided, however, that any obligation to make payment hereunder shall not be extended for any reason. rev 1/8 City of SCHAER 5 Cupertino Associates Inc. Right to Review and Adjust This proposal is subject to review an adjustment by SCHAER if a written purchase order or contract has not been received by SCHAER within thirty (30) days from the date hereof. Taxes The client shall be responsible for and shall pay taxes due to any agency, arising out of or under this agreement or any order or contract issued as a result of this proposal except for those taxes levied upon the net income or personal property of SCHAER. Entire Agreement This agreement supersedes all prior oral or written agreements and negotiations between the parties in relation to the proposal, and these terms and conditions will be considered to become terms and conditions of any contract or purchase order issued by the client in response to this statement whether or not they are expressly incorporated. This agreement may not be modified except in writing signed by each party. Controlling Law This agreement and any contract or purchase order issued as a result of this Statement shall be governed by, subject to, and construed in accordance with the laws of the State of California. rev 1/8 City of 6 Cupertino SCHAER Associates Inc. Waiver The failure of each party to exercise any right hereunder or to take any actin permitted on a breach by the other party shall not be deemed a waiver of such right or of any other rights or subsequent breach of a like or different nature. 4, Equal Employment Opportunity The provisions of the following laws, Executive Orders, and any rules and regulations issued thereunder, are incorporated herein by reference as part of this agreement: o Paragraphs one (1) through seven (7) of Section 202 of Executive Order 11246, as amended, relating to equal opportunity in employment under government contracts and subcontracts; o Section 2012 of Title 38 of the United States Code and Executive Order 11701, as amended, relating to affirmative action obligations of government contractors and subcontractors for disabled veterans and veterans of the Vietnam era; and o Section 303 of the Rehabilitation Act of 1973 and Executive Order 11758, as amended, relating to affirmative action obligations of government contractors and subcontractors for handicapped workers. rev 1/8 �&V City of 7 Cupertino 4, SCHAER Associates Inc. SCHAER agrees to fully comply with such provisions and any amendments thereof. In addition, all subcontracts and agreements that SCHAER enters into to accomplish the work under the terms of this agreement shall obligate such subcontractors to comply with such provisions. ti APPROVED A SS TO FORM- (--" City Attorney rev 1/8 CITY OF CUPERTINO Al `` City of SCHAER 8 Cupertino Associates Inc.